By Samuel Damren
In Dobbs v. Jackson, the majority justices delivered on Donald Trump’s campaign promise to overturn Roe v. Wade. In a statement from the former president, he said “God made the decision.” According to Trump, the majority justices – God’s scribes in Trump’s view – established religious doctrine as Supreme Court precedent.
Notwithstanding the former president’s perspective on the foundation and source of the opinion, the reason for the Supreme Court’s blanket and abrupt reversal of Roe v. Wade is the product of a partisan politic that has overwhelmed the nation’s highest court.
For Trump and “his” justices, the political reason for an immediate and abrupt reversal of a personal liberty articulated by the Supreme Court 49 years ago and exercised by more than 50 million women was to demonstrate the power retained by the former president while out of office. It also made good on a promise that the Trump justices obviously made to the former president during the nominating process.
According to Senators Susan Collins, Joe Manchin, Lisa Murkowski and others, when the Trump justices who overturned Roe v. Wade were only nominees, they either lied or misled Senators about their opinion of its continued viability as precedent.
None of this should come as a surprise.
One of Trump’s favorite political “modus operandi” is to convince subordinates or people who want something from him to lie or misrepresent facts to provide cover for Trump to take action that would be outside established norms, say of reversing long standing court precedent embedded for half a century in our national culture, or illegal.
Asking Ukraine President Volodymyr Zelensky to open an investigation on Hunter Biden as a quid pro quo for military funds to Ukraine is only one example.
For a more recent example, we need only look at Trump’s plot to overturn the results of the 2020 presidential election as recently recounted in the House hearings on the “January 6 Attack on the Capitol.” As testimony and evidence at the hearing demonstrated, Trump repeatedly sought the aid of the Department of Justice to further this plot by falsely asserting that there was significant voter fraud in Georgia, Pennsylvania, Michigan, Arizona, and elsewhere.
William Barr told him the allegations were “bull****” and resigned. Seventy court cases alleging voter fraud were dismissed; some as frivolous with Trump lawyers sanctioned. Jeffrey Rosen, who was appointed acting Attorney General in Barr’s place, and other top leaders at DOJ later told Trump they had fully investigated claims of voter fraud and that there was no evidence to support them.
As a last resort to create cover for the plot, Trump started looking for “yes men” to replace the acting AG and connived to install DOJ environmental lawyer Jeffrey Clark (and Trump appointee) as “his” Attorney General. In a show of either great initiative or sedition, Clark (and others yet to be disclosed) drafted and sent to Trump, a proposed DOJ letter to state legislators falsely stating that the DOJ had evidence of voter fraud, was investigating the matter and asking legislators to hold off certifying the election results.
The plan failed when the top leaders at DOJ learned of the proposed letter and threatened to resign enmasse. They did not knuckle under to Trump promises or threats. Instead, unlike Trump and Clark, they held true to their oaths of office and fidelity to the Justice Department’s policy and long-standing precedent of non-interference in partisan elections.
Fidelity to that precedent apparently meant more to the officials at DOJ than the precedent of Roe v. Wade meant to the majority Justices in Dobbs v. Jackson.
Trump also employed the same M.O. with Pentagon officials during the summer of 2020 when he sought to enlist the American military to suppress protests against police racism. He initially convinced military leaders to clear a small group of peaceful protestors from a street near the White House so that he could walk to a local church and hold up a Bible for a photo-op.
When he later sought to build on those political theatrics to invoke the Insurrection Act, military leaders, including Secretary of Defense Mark Esper, recognized that their earlier actions were a mistake and publicly stated that there was no basis to Invoke the Insurrection Act.
Trump would later fire Esper on November 9, 2020, two days after he lost the election with only two months remaining in his term of office.
If given the opportunity to re-take the White House in 2024, Trump will not repeat these mistakes.
Just as he politicized the Supreme Court through what Senators who were critical to the confirmation of the Trump justices now recognize were lies and misrepresentations by his nominees, Trump will do even worse should he re-take the White House in 2024.
In a second term, Trump will take careful steps from the beginning of his tenure to co-opt the JusticeDepartment and the military by installing a cadre of sycophants, like Jeffrey Clark, in leadership roles.
Late in his second term, nothing will prevent Trump from provoking the public to riots – he has a proven track record of success on that account – and declaring martial law to extend and continue his stay in office by authoritarian rule.
If you think this is hyperbole, it’s not. History abounds with examples of democratically installed leaders who wrench their republic to authoritarian rule through deceits and police-state tactics. Recent examples include Venezuela’s Hugo Chavez, on the left, and Turkey’s Recep Tayyip Erdogan, on the right. There are many other examples.
If you think this scenario is impossible in the United States, think again. The reason why it might seem impossible is because of the historical strength and independence of American institutions. But if Trump co-opts those institutions then the imposition of authoritarian Trump and cruel religious sect rule in America is a real possibility.
Before concluding this commentary, let me return to Dobbs v. Jackson. With that decision for the first time in American history, the Supreme Court ripped a personal liberty from its citizens. In callous disregard for the country’s well-being, not to mention the health of pregnant women, five justices exercised their personal raw and cruel power across the entire country instead of proceeding in the more traditional and measured course suggested by Chief Justice John Roberts to further examine the impact of their decision before taking any additional steps to expand it.
The majority justices contend that in deciding Dobbs v. Jackson, they were merely returning decision power on this issue to the states. This feint is nothing more than an attempt by the majority justices to “wash their hands” of the panic among pregnant women, uproar visited on the states and religious-based persecutions that the decision in Dobbs v. Jackson has paved the way for a “crowd” of zealot state legislators to commit.
What’s next on the agenda to dictate the scope of American personal liberties under religious sect doctrine?
According to Justice Clarence Thomas’s concurring opinion, LGBT rights are in the crosshairs. Justice Samuel Alito cautions that we should not read anything into the Dobbs opinion about its effect on other personal liberties.
Hmmm. Which one should we believe this time?
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